U.S. v. Pomazi

Citation851 F.2d 244
Decision Date29 June 1988
Docket NumberNo. 86-5129,86-5129
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Laszlo POMAZI, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

W. Michael Mayock, Los Angeles, Cal., for defendant-appellant.

Paul L. Seave, Asst. U.S. Atty., Criminal Div., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BRUNETTI and THOMPSON, Circuit Judges, and PRO, District Judge. *

DAVID R. THOMPSON, Circuit Judge:

Pursuant to a plea bargain, Laszlo Pomazi ("Pomazi") pleaded guilty to a Second Superseding Information ("Information") charging him with two counts of mail fraud (18 U.S.C. Sec. 1341). On Count 1, the district court sentenced Pomazi to two years imprisonment and ordered him to make restitution of $64,229. On Count 2, the court placed Pomazi on five years' probation. One of the conditions of probation was that Pomazi pay the $64,229 ordered on Count 1. Pomazi appeals from his sentence on the grounds that (1) the court failed to inform him about the possibility of restitution prior to entering his plea; (2) the district court erred in ordering restitution when no specific dollar amount of loss was alleged in the Information and his plea bargain was silent as to restitution; and (3) the government breached its plea agreement by recommending that restitution be paid. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

I FACTS

Pomazi pleaded guilty to conducting a typical "boiler room" operation. The scheme operated essentially as follows: Pomazi and one or two cohorts would contact by telephone owners of small businesses located outside California and falsely advise them that they had won a valuable prize (either a car, a boat or a $5,000 cashier's check). The targeted victim would then be told that, in order to avoid paying a substantial federal tax on the prize, he or she should purchase a pen and pencil set from the caller's company for between $399 and $500. When the victim agreed, a pen and pencil set, worth much less than this stated amount, would be mailed to the victim who would then pay for the pen and pencil set with a postal money order mailed to the caller's fictitious company at a rented postal box. No one ever received a prize. According to the government, the scam grossed $180,000 over a three-month period.

The Information alleged two mailings involving one victim. Neither the Information nor the plea agreement contained any mention of the dollar amount of victim losses. No mention was made by the government or by the court during the plea proceedings that Pomazi might be required to pay restitution. On March 26, 1986, after his plea was entered, Pomazi received the government's sentencing memorandum. In it, the government recommended that restitution of $180,000 be ordered. In addition, the United States Probation Department prepared and submitted to the court a presentence report which recommended restitution. The report stated that Pomazi had expressed to his probation officer a desire to make restitution, although no amount was mentioned.

At the initial scheduled sentencing hearing Pomazi challenged the government's $180,000 restitution figure. The district court continued the hearing so that a U.S. Postal Inspector, who had identified the victims and tallied their losses, could be present to testify. At the continued sentencing hearing, the government limited its request for restitution to $64,229, the amount of loss attributable to those victims the government was able positively to identify by name and address. The district court fixed the restitution amount at $64,229, and that is what Pomazi was ordered to pay.

II DISCUSSION
A. Standard of Review

We review the legality of a criminal sentence de novo. United States v. Whitney, 785 F.2d 824, 825 (9th Cir.1986), as amended, 838 F.2d 404 (1988). Sentencing that falls within statutory limits, however, is left to the sound discretion of the district court and is reviewed for an abuse of discretion. United States v. Koenig, 813 F.2d 1044, 1046 (9th Cir.1987).

B. Imposition of Restitution

Before resolving Pomazi's contention that he was ordered to pay restitution in an improper amount, we must first determine whether the district court erred in ordering restitution at all. Our threshold inquiry is whether restitution was ordered under the Federal Probation Act, 18 U.S.C. Sec. 3651 ("FPA") or under the Victim and Witness Protection Act, 18 U.S.C. Secs. 3579, 3580 ("VWPA"). 1

The district court did not state under which of these two statutes it ordered restitution. However, probation was not granted on Count 1. Therefore, the $64,229 restitution order which was made part of the sentence on Count 1 could only have been imposed under the VWPA. This is so because the FPA only permits an order for restitution if probation is granted. 18 U.S.C. Sec. 3651 ("While on probation and among the conditions thereof, the defendant ... [m]ay be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had"). The VWPA is not so limited. Restitution under the VWPA can be ordered as part of a sentence, or as a condition of probation. "The court ... may order, in addition to or in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of the offense." 18 U.S.C. Sec. 3579(a)(1). See also United States v. Signori, 844 F.2d 635, 640 (9th Cir.1988) (the VWPA was enacted primarily "to fill a sentencing gap left by section 3651 ...").

Thus, the court properly ordered restitution under the VWPA on Count 1, and when it made payment of that restitution a condition of Pomazi's probation on Count 2 it did what it was required to do under the VWPA as set forth in 18 U.S.C. Sec. 3579(g): "If such defendant is placed on probation or paroled under this title, any restitution ordered under this section shall be a condition of such probation or parole."

C. Notice of Restitution

It is undisputed that neither the district court nor the prosecution advised Pomazi, prior to the time he entered his plea, that restitution might be ordered. Fed.R.Crim.P. 11(c)(1) requires a district court, before accepting a guilty plea, to advise the defendant that, among other things, "the court may also order the defendant to make restitution to any victim of the offense...." In addition to this statutory requirement, we have stated that, in the plea bargain context, "where the defendant foregoes the right to trial as the condition of his plea, he must know to what he pleads." Whitney, 838 F.2d at 405.

See also Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) (defendant must have "a full understanding of what [his] plea connotes and of its consequence."). Pomazi argues that the restitution portion of his sentence was illegally imposed because the district court did not advise him that restitution might be ordered, the Information made no mention of the dollar amount of victim losses, and his plea agreement was silent as to restitution.

The district court advised Pomazi at the Rule 11 hearing, and before he entered his plea, that he could be required to pay a fine of up to $500,000. As it turned out, the court ordered Pomazi to pay $64,229 in the form of restitution, rather than a fine. Pomazi could not have been surprised or prejudiced by the imposition of the $64,229 as restitution in light of his potential liability for $500,000. See United States v. Fentress, 792 F.2d 461, 466 (4th Cir.1986) (failure to advise defendant at plea proceedings of possible restitution order deemed harmless in light of larger potential maximum fine). Any error in failing to advise Pomazi of the possibility of a restitution order did not affect his substantial rights under these circumstances. See Fed.R.Crim.P. 11(h) ("Any variance from the procedures required by [Rule 11] which does not affect substantial rights shall be disregarded.").

D. Amount of Restitution

Pomazi contends that because his plea agreement was silent as to restitution, the amount of restitution the court could have ordered was limited to the amount of victim losses set forth in the Information. Only one victim was listed in the Information, and no amount of loss was stated.

The legislative history of the VWPA demonstrates that Congress sought to implement a system by which "the wrongdoer is required to the degree possible to restore the victim to his or her prior state of well-being." S.Rep. No. 97-532, 97th Cong., 2d Sess. 30 reprinted in 1982 U.S. Code Cong. & Admin.News 2515, 2536 ("Senate Report"). "[T]he court in devising just sanctions for adjudicated offenders, should ensure that the wrongdoer make goods [sic], to the degree possible, the harm he has caused his victim." Id. Section 2 of the VWPA expressly states that one of Congress' purposes in enacting the legislation was "to ensure that the Federal Government does all that is possible within limits of the available resources to assist victims and witnesses of crime without infringing on the constitutional rights of the defendant." Pub.L. No. 97-291, Sec. 2, 96 Stat. 1248 (18 U.S.C. Sec. 1512 note). The Senate Report acknowledged an unfortunate trend within federal criminal courts by which restitution had become reduced "from being an inevitable if not exclusive sanction to being an occasional afterthought." Senate Report at 2536. In an effort to encourage more frequent imposition of restitution, the VWPA requires a district court to state its reasons on the record any time it decides not to order full restitution. 18 U.S.C. Sec. 3579(a)(2).

Given the VWPA's objective of providing full compensation to victims, and the language of the Act which expressly authorizes the sentencing court to order a defendant to "make restitution to any...

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